Ballew v. State
| Decision Date | 29 June 1929 |
| Docket Number | 8 Div. 627. |
| Citation | 23 Ala.App. 274,124 So. 123 |
| Parties | BALLEW v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 8, 1929.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Otis Ballew was convicted of rape, and he appeals. Affirmed.
D Isbell, of Guntersville, for appellant.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty Gen., for the State.
Appellant was convicted of the offense of rape, and his punishment fixed at imprisonment in the penitentiary for a term of 10 years. Code 1923, § 5407.
The transcript here on appeal does not disclose an order of the court for a special venire, but, no question appearing to have been raised in the lower court about same, it is unnecessary that the transcript show such an order to have been made. Code 1923, § 3249; Cherry v. State, 214 Ala. 519, 108 So. 536.
The evidence in the case is of such a sordid nature that same will not be discussed.
There was no error in allowing the witness Willie Russell to testify that appellant "had intercourse" with her. Under the circumstances as detailed in her testimony, there was no doubt possible as to her meaning that he had "sexual intercourse" with her. State v Bailly, 29 S.D. 588, 137 N.W. 352, 353.
We hold it is judicially known that the statement that a man has "sexual intercourse" with a woman carried with it and as a part of it, the idea that there was a "penetration" of the private parts of the woman by the phallus of the man. Hence the suggestion of the trial judge, made during the examination of the witness Willie Russell, to the solicitor, "I expect you had better prove penetration," was as to a matter already covered by said witness' testimony, and unnecessary and superfluous. But, whether so or not, we are not persuaded that said suggestion constituted, or indicated to the jury, any improper assumption on the part of the said learned judge that "penetration" could be proven. It appears to us only a suggestion of one of the constituent elements of the offense charged which the trial court felt was about to be overlooked in the testimony, and the action of the court complained of merely served to indicate that degree of care that cases be intelligently presented, which every trial judge has a full discretion to exercise.
There was no error in any of the rulings by which the court permitted testimony as to all that took place in the little house...
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Myhand v. State, 4 Div. 711
...91 Ala. 45, 8 So. 679; Puckett v. State, 213 Ala. 383, 105 So. 211; Stewart v. State, 26 Ala. App. 392, 161 So. 112; Ballew v. State, 23 Ala.App. 274, 124 So. 123. The undergarments worn by Shelby June Edmondson at the time of the attack were properly identified and were shown by the testim......
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Harris v. State
...actual penetration.' Herndon v. State, 40 Ala.App. 118, 56 So. 85; Waller v. State, 40 Ala. 325; Harris v. State, supra; Ballew v. State, 23 Ala.App. 274, 124 So. 123. Penetration and sexual intercourse are synonymous terms. Ballew v. State, supra. Carnal knowledge is synonymous with sexual......
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State v. Bowman, 4
...to warrant the jury in finding that there was penetration of her private parts by the phallus of the defendant. Ballew v. State, 23 Ala. App. 274, 124 So. 123; State v. Bailly, 29 S.D. 588, 137 N.W. 352. This being so, there was evidence in behalf of the prosecution tending to establish the......
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Alvarado v. State
... ... excluded ... (3) The ... contention of the defendant that the evidence should ... affirmatively show that the prosecutrix knew and understood ... the meaning of the term "sexual intercourse" is ... without merit. Ballew v. State, 23 Ala.App ... 274, 124 So. 123; People v. Branch, 77 ... Cal.App. 384, 246 P. 811. If it should appear to the ... defendant that the prosecutrix by reason of her age or lack ... of intelligence and carnal-mindedness did not understand the ... meaning of the term, ample opportunity ... ...